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SUPREME COURT OF ARKANSAS
No. CV-15-988
NATHANIEL SMITH, MD, MPH, Opinion Delivered: October 19, 2017
DIRECTOR OF THE ARKANSAS
DEPARTMENT OF HEALTH, IN HIS
OFFICIAL CAPACITY, AND HIS APPEAL FROM THE PULASKI
SUCCESSORS IN OFFICE COUNTY CIRCUIT COURT
APPELLANT [NO. 60CV-15-3153]
V. HONORABLE TIMOTHY DAVIS
FOX, JUDGE
MARISA N. PAVAN AND TERRAH D.
PAVAN, INDIVIDUALLY, AND AS
PARENTS, NEXT FRIENDS, AND
GUARDIANS OF T.R.P., A MINOR REVERSED AND REMANDED.
CHILD; LEIGH D.W. JACOBS AND
JANA S. JACOBS, INDIVIDUALLY,
AND AS PARENTS, NEXT FRIENDS,
AND GUARDIANS OF F.D.J., A
MINOR CHILD; COURTNEY M.
KASSEL AND KELLY L. SCOTT,
INDIVIDUALLY, AND AS PARENTS,
NEXT FRIENDS, AND GUARDIANS
OF A.G.S., A MINOR CHILD
APPELLEES
ROBIN F. WYNNE, Associate Justice
This case is before us once again after the Supreme Court of the United States granted
the appellees’ petition for a writ of certiorari, reversed the judgment of this court, and
remanded for “further proceedings not inconsistent with” the opinion of the Court. Pavan
v. Smith, 137 S. Ct. 2075 (2017) (per curiam). The Supreme Court held that pursuant to
Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), Arkansas’s birth-certificate law,
Arkansas Code Annotated section 20-18-401 (Repl. 2014), is unconstitutional to the extent
it treats similarly-situated same-sex couples differently from opposite-sex couples. The
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parties have now filed supplemental briefs with this court. We take this opportunity to
reject appellant’s interpretation of the United States Supreme Court’s opinion and the
suggestion that a gender-neutral reading of Arkansas Code Annotated section 9-10-201(a)
(the assisted-reproduction statute) would adequately address the constitutional infirmity
found. The birth-certificate law must be addressed,1 but we cannot simply affirm the circuit
court’s previous order, which impermissibly rewrote the statutory scheme. An order
rewriting a statute “amounts to a judicial intrusion upon the legislative prerogative and
violates the constitutional doctrine of separation of powers.” Cox v. Comm’rs of Maynard
Fire Imp. Dist. No. 1, 287 Ark. 173, 176, 697 S.W.2d 104, 106 (1985). On remand, the
circuit court should award declaratory and injunctive relief as necessary to ensure that same-
sex spouses are afforded the same right as opposite-sex spouses to be listed on a child’s birth
certificate in Arkansas, as required under Pavan v. Smith, supra. Extending the benefit of the
statutes at issue to same-sex spouses will implement the mandate of the Supreme Court of
the United States without an impermissible rewriting of the statutes. See McLaughlin v. Jones
in & for Cty. of Pima, 401 P.3d 492 (Ariz. 2017) (extending the benefit of Arizona’s statutory
marital-paternity presumption to similarly situated female spouses rather than nullifying the
statute).
Accordingly, we reverse the circuit court’s order, and we remand for entry of a final
judgment consistent with the mandate of the Supreme Court of the United States.
Reversed and remanded.
1
We note that Arkansas Code Annotated sections 20-18-401(e), (f) and 20-18-
406(a)(2) (Repl. 2014) were at issue in the present case.
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WOMACK, J., concurs.
BAKER, GOODSON, and HART, JJ., dissent.
SHAWN A. WOMACK, Justice, concurring. I agree with the majority that we
must reverse and remand this case to the circuit court following the Supreme Court’s
decision. However, I would additionally require the circuit court to conduct a hearing and
make findings of fact regarding how, specifically, the law treats similarly situated same-sex
couples differently than opposite-sex couples and to make specific findings as to how those
couples are similarly situated for the purpose of the application of the statutes in question.
While the majority of this court remands to the circuit court only for an order consistent
with the Supreme Court’s ruling, the Supreme Court’s majority on remand clearly calls for
“further proceedings.” Only after conducting such further proceedings and making the
necessary findings of fact should the circuit court then issue an order, based on those
findings. Said order should determine the constitutionality of the relevant statutes in a way
that both comports with the law and is narrowly tailored so as to balance the legislative
presumption in favor of constitutionality with the equal treatment of law under the statutes
and should have limited application to parties and circumstances that are, in fact, similarly
situated.
The Equal Protection Clause of the Constitution prohibits a government actor from
treating similarly situated people dissimilarly. See Brown v. State, 2015 Ark. 16, at 6, 454
S.W.3d 226, 231; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). There
is no doubt that the position of the parties has drastically changed since this case was
originally presented to the circuit court below. See Smith v. Pavan, 2016 Ark. 437, 505
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S.W.3d 169 (Wood, J., concurring in part and dissenting in part). The appellant even avers
in its brief that the department of health has since revised its policy regarding birth certificates
for assisted-reproduction situations. As noted before, that information is not in the record
before us. Additionally, despite the cornerstone that the Equal Protection Clause prohibits
dissimilar treatment of similarly situated individuals, there is no analysis of that rule in the
circuit court’s order; nor is there a specific analysis regarding how the classification survives
the appropriate level of scrutiny. See Klinger v. Dep’t of Corr., 31 F.3d 727, 730 (8th Cir.
1994) Therefore, it would be not only prudent, but indeed mandatory according to the
Supreme Court’s ruling, to order the circuit court to conduct a hearing and make specific
findings of fact as stated above.
Finally, beyond determining the constitutionality of various portions of the
challenged statutes, it is not the role of this or any other court to attempt to fashion a remedy
that breaches into the realm of policy making. The role of determining policy belongs to
the people through their elected representatives in the legislature. Once the scope of
constitutional application is finally determined, it is incumbent upon the General Assembly
to re-engage and to establish the state of the law going forward within those boundaries.
KAREN R. BAKER, Justice, dissenting. I dissent from the majority’s opinion
because I would not remand this matter to the circuit court. I would simply vacate our
previous opinion and issue a substituted opinion reversing and dismissing the circuit court’s
order which impermissibly rewrote the statute. Further, based on Pavan v. Smith, 137 S.
Ct. 2075 (2017) (per curiam) and the State’s concession that Ark. Code Ann. § 9-10-201 is
unconstitutional, I would declare Ark. Code Ann. §§ 9-10-201(a) and 20-18-401(f)(1)
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unconstitutional, stricken, and void. We should not remand this matter to the circuit court
for an order consistent with the majority’s opinion. Moreover, despite the State’s urging to
take up a pen and set off through the Arkansas Code replacing the words “husband” and
“wife” with “spouse” or other gender-neutral alternatives, the truth is that that pen does
not belong to us, nor does it belong to the circuit court. The pen belongs to the legislature
and it is their duty to determine the best way to address the constitutional infirmity in these
two statutes. We cannot fashion the remedy, the authority to do so rests solely with the
legislature. Thus, there is no need to remand this matter to the circuit court, which is in no
better position and has no more authority than we do to rewrite these statutes. To do so
only delays this matter further. Therefore, based on the State’s concession that Ark. Code
Ann. § 9-10-201 is unconstitutional and the United States Supreme Court’s mandate in
Pavan, supra, I would reverse the circuit court’s order and declare that Ark. Code Ann. §§
9-10-201(a) and 20-18-401(f)(1) are unconstitutional, stricken and void.
GOODSON and HART, JJ., join.
Leslie Rutledge, Att’y Gen., by: Monty V. Baugh, Deputy Att’y Gen., for appellant.
Cheryl K. Maples, for appellees.
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